1.1. Procedure to date
and geographical scope of the report
This report was originally intended to cover two
mandates for which I was appointed as rapporteur on 24 March and
16 December 2009 respectively, on
- “The follow-up to the issue of political prisoners in
- “The definition of political prisoner”.
The two rapporteur mandates had been merged by decision of
the Committee on Legal Affairs and Human Rights at its meeting on
24 June 2010. At the same meeting, on the basis of an introductory memorandum
I had submitted
and a hearing with
experts, the committee endorsed the proposed criteria for the definition
of political prisoners and authorised me to carry out a fact-finding
visit to Baku. At its meeting on 5 October 2011, the committee renamed
the joint report “Revisiting the issue of political prisoners” on
the proposal of the Chairperson, as a compromise with the Azerbaijani
delegation which objected to its country being singled out in the
title of the report and refused to allow me to carry out my fact-finding
At the meeting on 8 March 2011, an attempt by the Azerbaijani
delegation to go back on the decision of 24 June 2010 and split
up the double mandate into its two original components was rejected
by the committee. Several attempts to obtain the Azerbaijani authorities'
co-operation in organising my fact-finding visit failed. In August
2011, my visa application was officially rejected.
Two more attempts to organise a
visit in November 2011 and at the end of January 2012 were also
unsuccessful, despite several interventions from the committee Chairpersons,
Mr Pourgourides and then Mr Chope. Following a last deadline for
an invitation until 12 March 2012, set by the Chairperson at the
January 2012 meeting, the committee was informed at its meeting
on 12 March 2012 that a date for a visit had been set for the first
week of May 2012. Unfortunately, one week before the agreed visit,
during the April 2012 part-session, the Azerbaijani delegation set
a new condition for granting my visa, namely that I should agree
to discuss only the theoretical definition of political prisoners
and not the alleged Azerbaijani cases. I felt duty-bound to insist
on carrying out my fact-finding visit on the basis of the double
mandate entrusted to me. Consequently, I was not granted a visa
and the visit already arranged for the following week had to be
called off. The committee, at its meeting on 24 April 2012, authorised
me to present my report without the usual fact-finding visit.
At its meeting on 21 May 2012, the committee decided to split
up my double mandate after all and asked me to present two separate
reports, one on the definition of political prisoners
and the other on the alleged cases.
As the Secretary General of the Parliamentary Assembly explained
at the same meeting, this decision restores the situation that existed
before the merger of the two motions on 24 June 2010. Consequently,
the title change of October 2011 no longer applies.
5. As regards geographical scope, the first motion underlying
this report was explicitly limited to Azerbaijan. The second, concerning
the definition of political prisoners, was not limited to any country
in particular. The merger of the two motions in June 2010 did not
lead to any change with respect to geographical scope. The renaming,
in October 2011, of the future report (“Revisiting the issue of
political prisoners”) allowed me to expand the potential geographical
scope of my mandate within the limits provided by the then Chairperson
of the Committee on Legal Affairs and Human Rights, who had proposed
the new title. But in view of the reversal, on 21 May 2012, of the
decision to merge the two reports, the title change and accompanying
potential broadening of geographical scope have become inapplicable.
6. By way of introduction, I will give an overview of the long
and painful history of the problem of political prisoners in Armenia
and Azerbaijan (section 1.2 below) and recall my views, endorsed
by the Committee on Legal Affairs and Human Rights at its meeting
on 24 June 2010, regarding the distribution of roles between the Assembly
and the European Court of Human Rights (“the Court”) (section 1.3
below). In the first main part of this report (section 2 below),
I will recall the existing, well-recognised definition of political
prisoners, applicable in principle to all member States of the Council
of Europe, as reaffirmed by the Committee on Legal Affairs and Human
Rights at its meeting on 24 June 2010. The second main part (section
3 below) will consist in the application of these criteria to a
number of cases and groups of cases of alleged political prisoners
1.2. The historical
context of the issue of political prisoners in the Council of Europe:
the accession of Armenia and Azerbaijan
The issue of political prisoners in the Council of
Europe dates back to the negotiations on the accession of Azerbaijan
to the Organisation. Azerbaijan undertook, inter
, “to release or to grant a new trial to those prisoners
who are regarded as ‘political prisoners’ by human rights protection
In November 2000, the Committee
of Ministers adopted Resolutions Res(2000)13 and Res(2000)14 inviting simultaneously
Armenia and Azerbaijan to become member States of the Council of
Europe, to be confirmed when the date of the accession was fixed.
In order to help member States overcome their reluctance, at the time,
to accept the accession of these two countries, a compromise solution
was found within the Committee of Ministers, whereby it was also
decided, in November 2000, that the Committee of Ministers would
monitor, on a regular basis, democratic developments in both countries.
Armenia and Azerbaijan joined the Council of Europe on 25 January
2001. The Committee of Ministers subsequently approved, on 31 January
2001, the Secretary General's initiative to appoint three distinguished
who would examine lists of cases of alleged
political prisoners drawn up by Armenian and Azerbaijani human rights
non-governmental organisations (NGOs).
so doing, the independent experts, acting in a quasi-judicial capacity,
undertook the task of determining who could “be defined as a political
prisoner on the basis of objective criteria in the light of the
case-law of the European Court of Human Rights and Council of Europe
They then examined
716 cases listed with a view to determining whether or not the detainees
in question were indeed “political” prisoners, on the basis of a
set of pre-established criteria to which all relevant Council of
Europe bodies, including the Azerbaijani authorities, agreed.
Committee of Ministers also set up a special group headed by then
Italian Ambassador Ago (the so-called “Ago Group”) to monitor the
implementation of this commitment. Unfortunately, not all 716 cases
were solved in due time. Twenty-three cases on the original list of
716 were given priority and dealt with by the experts as so-called
“pilot cases”. By April 2003, many of the 716 cases were resolved
and the list was reduced to 212 cases, which were the subject of
the experts' second mandate. In July 2004, the experts submitted
their final report to the Secretary General. In addition to the
20 opinions on the pilot cases, they adopted 104 opinions concerning
the 212 cases referred to them. They concluded that 62 persons were
political prisoners, whereas 62 were not, or no longer.
An additional list of 88 cases of presumed political prisoners
was subsequently drawn up by NGOs. It contains the names either
of persons arrested or convicted before 1 January 2001 who were
mistakenly omitted from the initial list of 716 presumed political
prisoners or of persons arrested or convicted between 1 January
2001 and 14 April 2002, the date of the entry into force of the
European Convention on Human Rights (ETS No. 5, “the Convention”)
in Azerbaijan. Only the Parliamentary Assembly has conducted an
assessment of this list, which is appended to its report of January
2004 (Doc. 10026
). In its Resolution
on political prisoners in Azerbaijan, the Assembly called,
to no avail, on the then Secretary General, Mr Walter Schwimmer,
to continue the work of the independent experts by giving them a
third mandate relating to this additional list. Another list of
107 new cases was presented by the Assembly in its report on “Follow-up
to Resolution 1359 (2004) on political prisoners in Azerbaijan”
to the adoption of Resolution
Since 2001, when Azerbaijan joined the Council of Europe,
the Parliamentary Assembly has thus considered the issue of political
prisoners in Azerbaijan on four occasions: January 2002, June 2003,
January 2004 and June 2005
. In its last resolution on this
matter, Resolution 1457
, the Assembly
reaffirms its position of principle that detainees recognised as
political prisoners must be released. It calls on the Azerbaijani
authorities to find a speedy and permanent solution to the issue
of political prisoners and presumed political prisoners:
i. by releasing
the three remaining political prisoners as determined by the independent
experts or by opening the possibility for their cases to be effectively
considered by the European Court of Human Rights by a retrial or
an appeal, as proposed by the Azerbaijani authorities;
ii. by immediately releasing presumed
political prisoners who have already served several years of their
sentence, in application of the provisions of the Criminal Code
relating to conditional release;
iii. by releasing or retrying presumed
political prisoners whose convictions were in breach of fair trial principles;
iv. by releasing on humanitarian
grounds presumed political prisoners who are seriously ill;
v. by releasing or retrying presumed
political prisoners who were involved in certain political events only
to a minor and very secondary degree, as the people presumed to
have instigated the events have themselves already been pardoned;
vi. by releasing presumed political
prisoners who have no connection with the events in question other
than that they are relatives, friends or mere acquaintances of leading
members of former governments;
and it welcomes the undertaking
by the Azerbaijani authorities to 'make use of every legal remedy (amnesty,
review of cases by higher-instance courts, conditional release,
release for health reasons, pardon) to settle this problem'”.
Despite some progress made following the various resolutions
of the Assembly,
the problem is still not resolved,
as recalled by the movers of one of the motions underlying this
no follow-up has been given to the Assembly recommendations, no
results have been achieved and the work of the Task Force has been
much less active since the adoption of Resolution 1545 (2007). Only
two meetings have been held and no pardon decree has been issued
since March 2007 despite promises to the contrary.
At the same time the list of alleged political prisoners
keeps growing. Some of the journalists who were condemned for defamation
were found to be prisoners of conscience by Amnesty International. Altogether,
today the list of Azerbaijani Federation of Human Rights Organizations
includes 72 political prisoners, 9 probable political prisoners
and 10 ‘former political prisoners’. Some of them were arrested for
a second time. One former political prisoner, Ms Faina Kungurova,
died in prison (18 November 2007) in unclear circumstances.”
The Assembly, in June 2010, debated a report on the functioning
of democratic Institutions in Azerbaijan, which, in its chapter
on human rights and fundamental freedoms, points out a number of
cases of jailed journalists and activists that need to be resolved
as a matter of urgency.
Following a visit
of the co-rapporteurs to Azerbaijan from 31 January to 2 February
2012, the Committee on the Honouring of Obligations and Commitments
by Member States of the Council of Europe (Monitoring Committee)
discussed an information note by the co-rapporteurs dated 25 April
2012, which once again refers to cases of imprisoned opposition
activists and journalists, as well as to the need for the Committee
on Legal Affairs and Human Rights to clarify the notion of political
The then Council of Europe Commissioner for Human Rights,
Thomas Hammarberg, published reports in March 2010 and in September
2011 in which he denounced the practice of using fabricated charges
to arrest and silence parliamentary candidates, journalists, and
members of youth groups.
The Commissioner's conclusions
up the problems in a way which I can fully subscribe to in light
of my own findings.
On 17 December 2009, the European Parliament voiced its own
concern about “the deterioration of media freedom in Azerbaijan,
[deploring] the practice of arresting, prosecuting and convicting
opposition journalists on various criminal charges”, and called
on the Azerbaijani authorities to “release the imprisoned journalists
immediately”. On 24 May 2012, the European Parliament adopted another
Azerbaijan for recent arrests of journalists and activists and demanding
that those held on “politically-motivated charges” be released.
Among the recent cases that in my view need to be addressed
most urgently is that of several young internet journalists (“bloggers”)
and youth activists who were convicted to long prison terms on “hooliganism” charges
after they were themselves the subject of an unprovoked attack by
In November 2011, Amnesty International
launched an urgent appeal to release 17 “prisoners of conscience”.
These recent cases show that the
structural problem in Azerbaijan involving the use of imprisonment
to silence opposition voices still persists.
15. Many of the so-called “old cases” have become urgent humanitarian
issues in view of the length of time the persons concerned have
already spent in prison, or their age and precarious state of health.
It is blatantly unjust to keep in prison people who at the time
of the alleged crimes were very young and could at most be considered
lowly accessories, whilst the instigators and organisers of their
deeds were recognised as political prisoners and have long been
released. It is equally unjust to keep in prison people who were
arrested after the completion of the independent experts' mandate
and who could only for this reason not be covered by their work.
They are still being punished for participating in the crimes whose
instigators and organisers, again, were recognised as political
prisoners and released a long time ago.
1.3. Distribution of
roles between the European Court of Human Rights and the Parliamentary Assembly
The criteria for identifying “political prisoners”
frequently refer to the European Convention on Human Rights. A political
prisoner is a person who is detained in violation of the Convention
(notably its Articles 5, 6 and 10). It goes without saying that
the authoritative interpretation of the Convention is the prerogative
of the European Court of Human Rights. Since the entry into force
of the Convention in Azerbaijan, the Court is also competent to
hear individual applications from people who feel that their Convention
rights had been violated. I should like to recall in this context
that on 22 April 2010 the Court held that Mr Eynulla Fatullayev,
who was jailed in April 2007 after writing a series of articles
critical of the authorities, had been wrongfully imprisoned and
called for his immediate release.
the fact that a number of cases of alleged political prisoners are either
still pending before the national courts, or before the European
Court of Human Rights, does not in principle prevent the Assembly
from making a political assessment of a possible systemic problem
consisting in the frequent jailing of political opponents and independent
journalists, either because relevant legal provisions are still
not in line with Council of Europe standards, or because they are
applied in a way that is inconsistent with these standards. In accordance
with the Assembly's well-established practice,
are free to refer to individual cases in order to detect and illustrate
patterns of potential violations, and to comment on such cases with
a view to proposing possible solutions. Of course, the Assembly's
political, albeit Convention-based, assessment of such cases is
not intended to interfere in any way with the Court's independence,
which the Assembly has always upheld and defended. Given that the
Court is currently flooded by a high number of similar individual
applications from certain countries triggered by “systemic” problems,
the Assembly can make a useful contribution by addressing such issues,
on the basis of carefully researched examples, and proposing solutions
to the competent national authorities that may help stem the flood
of applications to the Court at the source.
prisoner” as defined by the Council of Europe's independent experts
Judge Stefan Trechsel presented his and his colleagues'
findings regarding the definition and criteria for the term “political
prisoner” at a hearing before the Committee on Legal Affairs and
Human Rights on 24 June 2010 in Strasbourg.
The independent experts based their
work on that carried out by Professor Carl Aage Nørgaard, then President
of the European Commission of Human Rights, who had been invited
by the United Nations Security Council to identify “political” prisoners
in Namibia in 1989/90. Professor Nørgaard's close collaborator,
Andrew Grotrian, was also among the experts testifying at the hearing
on 24 June. The third expert at the hearing was Mr Javier Gómez
Bermúdez, Judge, President of the Criminal Chamber of the Audiencia
Nacional (Spain). Following the discussion with the experts, the
committee approved the conclusions of my introductory memorandum
me to continue working on the basis of these objective criteria.
During the discussion, agreement was reached among the experts
that persons convicted of violent crimes such as acts of terrorism
cannot claim to be “political prisoners” even if they purport that
they have acted for “political” motives. Mr Gómez Bermúdez specified
that this principle is applicable in democratic States with legitimate
governments, where there could not be any talk of “legitimate resistance”
such as that of the French “Résistance” during the Second World
War. This argument is reinforced by Article 17 of the European Convention
on Human Rights, entitled “Prohibition of abuse of rights”.
the following framework was developed
by the independent experts, based on the European Convention on
Human Rights and on the case law of the European Court of Human
Rights; it differs according to the nature of the offence for which
the person in question is imprisoned.
2.1. Purely political
20. These are offences which only affect the political
organisation of the State, including “defamation” of its authorities
or similar misdeeds.
Not all offenders who are imprisoned for such offences are
“political prisoners”. The test is whether the detention would be
regarded as lawful under the European Convention on Human Rights
as interpreted by the European Court of Human Rights. As a rule,
“political” speech, even very critical of the State and the powers in
place, is protected by Article 10 – there is no “pressing social
need” in a “democratic society”, in the terms of Article 10, to
suppress such speech.
But there are
cases in which political speech exceeds the limits set by the Convention,
for example when it incites violence, racism, or xenophobia.
It should be noted that, whenever
the Court has found the repression of such speech acceptable under
the Convention, the penalties handed down by the national courts
were largely symbolic. As the Convention must be interpreted coherently, without
contradictions, a person punished in accordance with Article 10,
paragraph 2, of the Convention cannot be seen as being held unlawfully
under Article 5 and therefore cannot be considered a political prisoner.
But it is understood that punishment for political speech that is
in principle not protected by Article 10 can still be in violation
of the Convention (and thus give rise to the prisoner in question
being “political”) when the punishment meted out is disproportionate,
discriminatory or the result of an unfair trial.
2.2. Other political
22. These are offences where the perpetrator acts with
a political motive (and not one of personal gain), and the offence
not only damages the interests of the State, but also those of other
individuals – for example acts of terrorism. Obviously, the State
under whose jurisdiction such acts are committed is not only entitled,
but is even under a positive obligation to prosecute such offences.
Consequently, persons who are serving a sentence for such an offence
or detained on remand on suspicion of having committed such an offence
are not political prisoners. But the same exceptions as above can
arise where the punishment meted out is disproportionate, discriminatory
or the result of an unfair trial.
2.3. Non-political offences
23. Persons who are imprisoned in connection with non-political
offences (that is all other offences where neither the actus reus nor the mens rea has a political connotation)
are, as a rule, not political prisoners. Again, there are exceptions
to this rule. A person convicted of a non-political offence can
be a political prisoner when there is a political motive on the
side of the authorities to imprison the person concerned. This can
become apparent when the sentence is totally out of proportion with
the offence and/or when the proceedings are clearly unfair.
2.4. Burden of proof
The distribution of the burden of proof is particularly
important in such an area where much depends on the “political”
or other motivation of either the perpetrator or the authorities.
The agreed approach of the Council of Europe's independent experts
was the following: it is in the first place for those alleging that
a specific person is a political prisoner to present a prima facie
case. This material
is then submitted to the State concerned, which will in turn have
the opportunity to present evidence refuting the allegation. As
summed up by Stefan Trechsel:
the respondent State succeeds in establishing that the person concerned
is detained in full conformity with ECHR requirements as interpreted
by the European Court of Human Rights, as far as the merits are
concerned, that the requirements of proportionality and non-discrimination
have been respected and that the deprivation of liberty is the result
of fair proceedings, the person concerned will have to be regarded
as a political prisoner.”
Those mandated to establish the political character of a detention
can also apply, mutatis mutandis
the Court's case law on factual inferences in cases in which the
respondent State fails to co-operate by making available documents
or other information that is in the exclusive possession of its
2.5. Summary of the
“A person deprived of
his or her personal liberty is to be regarded as a ‘political prisoner’:
a. if the
detention has been imposed in violation of one of the fundamental
guarantees set out in the European Convention on Human Rights and
its Protocols (ECHR), in particular freedom of thought, conscience
and religion, freedom of expression and information, freedom of
assembly and association;
b. if the detention has been imposed
for purely political reasons without connection to any offence;
c. if, for political motives,
the length of the detention or its conditions are clearly out of
proportion to the offence the person has been found guilty of or
is suspected of;
d. if, for political motives,
he or she is detained in a discriminatory manner as compared to
other persons; or,
e. if the detention is the result
of proceedings which were clearly unfair and this appears to be
connected with political motives of the authorities.”
27. The allegation that a person is a “political prisoner” must
be supported by prima facie evidence;
it is then for the detaining State to prove that the detention is
in full conformity with requirements of the Convention as interpreted
by the European Court of Human Rights in so far as the merits are
concerned, that the requirements of proportionality and non-discrimination
have been respected and that the deprivation of liberty is the result
of fair proceedings.
28. A good look at the criteria shows that someone recognised
as a “political” prisoner is not necessarily “innocent”. The “political”
aspect of a case may reside, for example, in the selective application
of the law, or in disproportionately harsh punishment in comparison
with persons without a “political” background convicted of a similar
crime, or finally in unfair proceedings which may nevertheless have
resulted in the conviction of a guilty person. Recognition of a
prisoner as “political” does not therefore necessarily require his
or her immediate release – a new, fair trial may well be the most
appropriate remedy. This said, given the length of time many such
prisoners have already spent in prison, their urgent release, even
if they are actually “guilty” of the crimes they were accused of,
is now often the sole means to dispel the suspicion that they are
being treated particularly harshly for “political” reasons.
2.6. General acceptance
of the independent experts' criteria
The criteria summed up above were provided to all
concerned. As is stated in the Secretary General's information document
on the results of the work of the independent experts, “[n]o substantial
objections were raised to these criteria”.
its 765th meeting on 21 September 2001,
the Deputies “welcomed
the Secretary General's independent experts' report on alleged political
prisoners and Armenia and Azerbaijan as it appears in document [SG/Inf(2001)34
and Addendum I and Addendum II] ...” and adopted the following declaration
on this matter:
of Ministers of the Council of Europe welcomes the news that the
President of the Republic of Azerbaijan has issued on 17 August
2001 a decree pardoning 89 political
prisoners, 66 of whom have been released and 23 of whom
have had their sentences reduced ....” (bold added to underline
that the term “political prisoner” was used by the Committee of
Three years later, at the close of the independent experts'
second mandate, the Secretary General's information document reiterated
that “[t]hese criteria were accepted by the Azerbaijani authorities
and all Council of Europe instances”.
The Parliamentary Assembly's
subsequent resolutions were also based on the generally accepted
criteria developed by the independent experts.
During my present rapporteur mandate, several attempts were
made at the committee level to reopen the question of the definition
of political prisoners.
But I continue to hold
the view that any such attempt at “reinventing the wheel” would
merely deflect from the important task at hand of assisting Azerbaijan
in resolving, at long last, its problem of political prisoners.
32. In this context, I would like to repeat that it is perfectly
clear that terrorists, whether they belong to the ETA, to the PKK
or any other terrorist organisation, do not fall under the definition
of political prisoners, even if they claim that they have committed
their heinous crimes for “political” motives. However, persons accused
of terrorist crimes who were, for political motives – this time
on the side of the authorities –, convicted on the basis of an unfair
trial using tainted evidence (such as “confessions” obtained under
torture, or witnesses acting under duress) may well be presumed
“political” prisoners if there are sufficient indications that such
violations have indeed taken place.
3. Application of
the definition to a number of alleged cases of political prisoners
During the fact-finding stage of the preparation
of the present report, I had proposed to the Azerbaijani authorities
to follow a six-step procedure:
- Step one: compiling a “draft consolidated
list of alleged political prisoners” on the basis of lists of alleged political
prisoners submitted by different NGOs
- Step two: transmitting
the “draft consolidated list” to the Azerbaijani authorities for
- Step three: providing
the authorities' comments to the NGOs which had transmitted the
names of the persons in question, asking them to take a position
on the authorities' comments.
- Step four: during
the planned fact-finding visit to Baku, discuss the results of steps
one to three with representatives of the authorities and of civil
- Step five: analysing
the information received and assessing each case in light of the
criteria confirmed by the Committee on Legal Affairs and Human Rights
at its meeting in June 2010.
- Step six: presentation
of the results in the form of a draft resolution and a report, for
adoption first by the Committee on Legal Affairs and Human Rights
and then by the Parliamentary Assembly.
Unfortunately, the authorities have failed to provide
comments on the list which I transmitted in December 2011. The expert
chosen by the authorities invited to the hearing in January 2012
also chose to discuss only general issues and failed to comment
on the substance of the cases that I had raised. As I already mentioned,
Azerbaijani authorities have also not allowed me to carry out the
fact-finding visit to Baku, which would have been another opportunity
for presenting me with the official point of view on the cases in question.
By contrast, I have received numerous comments, additional
details, clarifications and other explanations concerning the different
groups of cases from the non-governmental organisations which I consulted
before and after the hearing in January 2012. In particular, on
10 and 11 May 2012, I had the opportunity to work with two Azerbaijani
human rights defenders who came to Berlin and shared with me and my
collaborators a wealth of information on selected cases. I should
like to thank Mr Anar Mammadli and Mr Anar Gasimli for their professionalism
and patience in standing up to the intensive questioning to which
we submitted them during these two intensive working days.
As far as the cases in question go back to the successive
mandates of the Council of Europe's independent experts, I have
relied to a large extent on the experts' case studies. I have not
attempted to second-guess the conclusions of the eminent independent
experts, whose work was supported by considerably greater resources
than those at my disposal as a rapporteur of the Assembly. However,
I received serious indications from NGO representatives who had
previously worked with the independent experts that, in some cases,
the determination as “not political” was merely based on the failure
of the persons concerned to provide information allowing the experts
to find that they had a “prima facie
failure, according to the NGOs, may well have been caused by a lack
of legal advice or support from NGOs, not all of whom worked with
equal professionalism and objectivity. Some persons whose names
appeared on the list may well have been under the mistaken impression
that once they were on the list they would somehow be freed automatically.
As the present exercise may well be the last chance for such persons
to be released from prison, I decided to include these persons on
the “draft consolidated list of alleged political prisoners” transmitted
to the authorities and to civil society for their comments. If in
such cases I did receive sufficient information allowing me to conclude
that the persons concerned had a prima
case for being considered as “political” cases,
whilst the authorities failed to provide corroboration to the contrary,
I have included them on my final list. The cases concerned include,
in particular, those of some (at the time) very young “OPON” (Ministry
of Interior special forces) soldiers who followed their leaders'
orders to participate in an aborted coup
in 1995. Whilst their senior officers, the organisers
and instigators of the attempted coup, have long been released,
after having been recognised as “political prisoners” by the Council
of Europe, a number of rank-and-file soldiers, drivers, etc. are
still in prison. As a matter of non-discrimination, they ought to
be released too, unless they have been convicted in a fair trial
of criminal acts committed on the occasion of the attempted coup
for which their leaders could not be held responsible.
As explained above,
I am aware that this Assembly is not
a court of law. Therefore I will not draw definitive conclusions
on the cases of alleged political prisoners that were brought to
my attention. But I have collected a wealth of information from
many different sources. As the Azerbaijani authorities have not
provided their views on the information I submitted to them,
I have applied, mutatis
, the legal principle underlying the case law
of the European Court of Human Rights on factual presumptions in
cases in which the respondent State fails to provide a credible
alternative version of the facts presented by the applicant.
the light of this principle, careful consideration of all the information
received has therefore led me to recognise a number of persons as
prisoners. Such persons should indeed be released or at least benefit
from a new, fair trial, unless the authorities can refute point
by point the specific information on which my assessment is based.
Given that the Azerbaijani authorities failed to do so during the
preparation of this report, they must now deal with this as part
of the follow-up of this report in order to avoid being found definitively
responsible for allowing cases of presumed political prisoners to
remain unresolved in a member State of the Council of Europe. It
will be for others to assess, at the appropriate time, what the
consequences of such a situation should be.
The cases of presumed political prisoners will be presented
in this report by groups of cases in order to place them more clearly
in their political context. For reasons of space, only one or two
particularly representative cases of each group can be presented
in the report in any detail. For easier reference, an alphabetic
list of all cases examined is attached as an appendix.
the main report, I have included only cases of persons who at the
time of writing were still in prison. But I have created a second
appendix listing those persons who fulfilled the criteria for being
recognised as “political prisoners” but who are no longer in prison,
because their prison term had come to an end or because they were
pardoned. The very existence of these cases further illustrates
the systemic problems this report is intended to address. For the
same reason, I have included some cases in a “watch list” of persons
who are still in detention on remand and have not yet been convicted.
In any event, my lists are not intended to be exhaustive – it is
in fact quite likely that a number of cases have escaped my attention.
3.2. Cases of presumed
39. I will split the presentation of the cases of presumed
political prisoners into two main parts: the new cases which have
arisen since the last report of the Assembly in 2005, and the older
cases which date back to the time of the Council of Europe's independent
experts, or are related to such cases.
3.2.1. New cases
40. I have separated the “new” cases of presumed political
prisoners into five principal groups. The first includes cases of
leaders or activists of the main secular opposition parties (in
particular, “Musavat” and “Popular Front”). The second groups cases
of civic activists (including those belonging to the “Public Chamber”/Ictimai
Palata, which gathers several, but not all civil society and opposition
groups). The third group includes journalists (including several
on my “watch list” of persons in pre-trial detention). The fourth
contains different sets of cases concerning Islamic activists, and
the fifth and final group assembles other emblematic cases such as
those of former ministers who had distanced themselves from the
220.127.116.11. Cases of leaders
and activists of secular opposition parties
41. This group of cases includes a number of young people
arrested during the generally peaceful demonstration organised by
“Public Chamber” on 2 April 2011, when the authorities feared the
propagation of the “Arab Spring” to Azerbaijan. The main charge
against them was the organisation of or participation in “unrest”
during the demonstration.
Case No. 1: Abbasli (Abbasly),
42. Mr Abbasli, chairperson of the youth organisation
of the opposition party “Musavat”, was a student at Baku University
(master of journalism); when he was arrested, he was also dismissed
from the University. He was arrested on 2 April 2011 at the very
beginning of the “Public Chamber” rally when he was shouting slogans for
freedom and the resignation of the government. According to his
lawyers, two police officers beat him with a bludgeon and brought
him to the police station of Yasamal district, where he was beaten
again, by the head of the station. When his lawyer, Mr Gasimli,
came to the police station, he saw traces of the beatings (around Mr
Abbasli's eyes and on his legs) and asked a police investigator
for permission to take photographs, a request that was denied. The
investigator also refused to have photographs taken of himself.
During the trial, Mr Abbasli told the judge about the beatings.
The judge asked the prosecutor to carry out an investigation, in writing,
which the prosecutor's office refused to do. According to the Prosecutor’s
Office, the traces of beatings, which had in the meantime been confirmed
by an expert, had been caused by Mr Abbasli himself, when he had resisted
43. On 7 September 2011, Mr Abbasli was convicted of a crime under
Article 233 of the Criminal Code (organising an action resulting
in the disturbance of public order) and sentenced to two years and
six months in prison.
44. The maximum sentence under Article 233 of the Criminal Code
is three years in prison. The provision foresees alternatives to
imprisonment, such as a fine, or corrective labour, or restriction
of liberty of up to two years. A total of 14 people were arrested
in connection with the rally on 2 April, four of them as “organisers” and
10 as “active participants”. Three of the “organisers”, Mr Abbasli,
Mr Hajili (case No. 34), and Mr Majidli (case No. 64), were given
harsh prison sentences; the fourth, Mr Fuad Gahramanli, was sentenced
to house arrest only, although he was one of the official organisers
of the protest. Human rights defenders consider this difference
of treatment as “divide et impera”
tactics to spread distrust among opposition activists, and to help spread
rumours of collusion with the authorities.
45. By contrast, the conviction of Mr Abbasli as an “organiser”
appears to be an obvious miscarriage of justice: at the time when
the organising committee for the protest action met and decided
on the rally on 2 April 2011, namely on 18 March, Mr Abbasli was
actually in (administrative) detention. He had been arrested on
12 March 2011 following a rally of youth organisations on 11 March
2011 and was only released on 19 March.
The harsh sentences against the organisers and participants
of the rally of 2 April were ostensibly justified by “violence”
committed by certain participants. According to the lawyers and
NGOs, who provided us with video footage of the events
that appears to confirm their account,
the protest action was a peaceful use of the right to freedom of
expression. Whilst some windows were broken towards the end of the
event by people unknown to the organisers (and suspected of being
“agents provocateurs”), certain police officers beat protesters,
who merely raised their arms to protect themselves against the bludgeons.
The testimony of some witnesses of the prosecution, owners of market
stalls in the vicinity of the protest action who complained that access
to their stalls was restricted to the point that some felt obliged
to close their stalls temporarily, was “well rehearsed” according
to the lawyers. In any event, none of the people convicted as organisers
or active participants of this protest action were even accused,
let alone convicted of having committed acts of violence themselves.
47. Mr Abbasli was recognised by Amnesty International as a “prisoner
of conscience”. In my view, he is also a presumed political prisoner
under the “Trechsel criteria”. Organisers of and participants in
events making use of their right to peaceful expression of their
opinions should not be criminalised and certainly not receive such harsh
prison sentences. The procedural irregularities and the illogical
findings of fact further support the assessment of the case as presumably
Case No. 23: Eyvazli Zulfugar (Zulfuqar)
/ Eyvazov Zulfigar
48. Mr Eyvazli is chairperson of the Nizami district
organisation of the Popular Front (AXCP/PPFA) opposition party.
He was sentenced to one year and six months in prison as an “active
participant” of the protest action on 2 April 2011 (see case No.
Case No. 33: Hajili (Hajily),
49. Mr Hajili is the head of the Musavat Party central
apparatus; he was arrested during the “Public Chamber” rally on
2 April 2011 (see case No. 1 above) and sentenced to two years and
six months in prison. Mr Hajili had previously been arrested at
a protest meeting following the 2003 presidential election and sentenced
to one year in prison.
On 10 January 2012, Mr Hajili won a case before the European
Court of Human Rights.
Court found a violation of Article 3 of Protocol No. 1 to the Convention
(right to free elections). Whilst the case was not related to the
cause of his imprisonment, it illustrates the political conflict
between Mr Hajili and the Azerbaijani authorities.
51. Mr Hajili was recognised as a “prisoner of conscience” by
Amnesty International. He is also a presumed political prisoner,
in view of the political nature of the action in which he was involved,
the disproportionate penalty and the context of his trial, together
with other activists, against the backdrop of his previous conflict with
the authorities on election rights.
Case No. 34: Hajibeyli, Rufet
52. Mr Hajibeyli was an active participant of opposition
parties and movements; he was convicted as an “active participant”
in the protest action of 2 April 2011 (see case No. 1 above); he
was sentenced to one year and six months in prison.
Case No. 35: Hasanli, Shahin
53. Mr Hasanli, a head of department of the opposition
Popular Front Party, was arrested before the protest action on 2
April 2011, when he was staying overnight at his mother's house
outside Baku. He had fled from his own home because he had received
warnings that he would be arrested. When the police entered his mother's
house during the night, he did not resist arrest, but refused to
sign the search protocol because of the absence of independent witnesses,
as required by law. During the disputed search, the police found
a bullet. Witnesses of the search were presented during the trial,
but the defence stated that they were not present on the premises
at the time of the search. On 21 July 2011, Mr Hasanli was found
guilty of being an “active participant” in the protest action of
2 April 2011 (see case No. 1 above), of disobeying a police order,
and of illegally keeping ammunition, and was sentenced to two years
54. He is a presumed political prisoner because of the political
nature of the action for which he was convicted and the disproportionately
harsh prison sentence (oddly, although he was in fact one of the
official “organisers”, he was not present at the protest on 2 April
because he had been arrested earlier, and was convicted as an “active
participant”). The conviction for possession of ammunition appears
to be particularly suspect, given the circumstances – besides the
alleged absence of witnesses, why would he have brought a bullet
to his mother's house if he had reasons to fear imminent arrest?
Case No. 36: Hasanov, Babek
55. Mr Hasanov is an opposition party activist; he was
convicted of being an “active participant” in the protest action
on 2 April 2011 (see case No. 1 above) and sentenced to one year
and six months in prison.
Case No. 57: Kerimov, Sahib
56. Mr Kerimov is an opposition party activist; he was
convicted of being an “active participant” in the protest action
on 2 April 2011 (see case No. 1 above) and sentenced to two years
Case No. 60: Majidli, Elnur
57. Mr Majidli is an opposition party activist; he was
convicted of being an “active participant” in the protest action
on 2 April 2011 (see case No. 1 above) and sentenced to one year
and six months in prison.
Case No. 61: Majidli, Mahammad
58. Mr Majidli is the Deputy Chairperson of the Popular
Front opposition party (AXCP/PPFA); he was convicted of having been
one of the organisers of the protest action on 2 April 2011 (see
case No. 1 above) and sentenced to two years in prison.
Case No. 64: Mammadli (Mamedli),
59. Mr Mammadli is an active member of the Musavat opposition
party; he was convicted as an “active participant” of the protest
action on 2 April 2011 (see case No. 1 above) and for resisting
government officials through force (Article 315 of the Criminal
Code) and sentenced to three years in prison.
Case No. 80: Quliyev, Ulvi
60. Mr Quliyev is an opposition activist. He was convicted
as an “active participant” of the protest action on 2 April 2011
(see case No. 1 above) and for resisting government officials through
force (Article 315 of the Criminal Code) and sentenced to three
years in prison.
18.104.22.168. Cases of civic
Case No. 43: Iskenderov (Isganderov),
61. Mr Iskenderov was an independent parliamentary candidate
in 2010. He is chairperson of the public association “Assistance
to Democracy Protection” and a legal activist; he was convicted
on 27 August 2011 for “pressure on voters” (Article 159.3 of the
Criminal Code), “interference with members of an election commission”
(Article 160.1), “assault and battery” (Article 132) and sentenced
to three years in prison.
62. According to his lawyers, the following events took place
at a polling station in the Agdash-Goychay district during the parliamentary
elections in 2010: Mr Iskenderov, who, as a candidate, had the right
to be present at the polling station, noted that “ballot stuffing”
was taking place. He asked for the annulment of the results in this
station, starting a discussion with members of the election commission
in attendance. Unauthorised persons present in the polling station
forcibly removed him from the premises, whilst Mr Iskenderov merely
tried to passively protect his physical integrity and his right
to be present at the polling station. The witnesses of the prosecution
in the trial were relatives of the members of the election commission, whereas
authorised observers present at the station did not confirm that
Mr Iskenderov had beaten anyone. The allegation of ballot stuffing
in this station was not investigated despite the evidence (in particular
video footage) adduced by Mr Iskenderov.
63. The authorities were allegedly also upset with Mr Iskenderov
for giving free legal advice to inhabitants of the Goychay-Kurdemir
64. Given the political connotations of the action for which he
was convicted, his political and civic activism, and the harsh punishment
meted out following a suspect trial in apparent retaliation for
his insistence on exposing election fraud, I consider Mr Iskenderov
a presumed political prisoner.
22.214.171.124. “Watch list”: persons
in pre-trial detention arrested in suspect circumstances but not
65. Human Rights Watch (HRW) has asked me to flag the
following two cases of civic activists arrested in suspect circumstances:
Case No. 54: Khasmammadov, Taleh
66. Mr Khasmammadov is a lawyer, human rights defender
and blogger from the town of Goychay, who was arrested in November
2011 on charges of “hooliganism” and physically assaulting a public
official. Mr Khasmammadov specialises in investigating allegations
of abuses and illegal activities committed by law enforcement officials.
I share HRW's worries that he may be a victim of retaliation by
law enforcement officials angered by his investigations.
Case No. 62: Mamedov, Bakthiar
67. Mr Mamedov from Baku is also a lawyer who defended
the rights of two families facing illegal evictions in the Bail
district of Baku. According to Amnesty International, he was arrested
on 30 December 2011 on apparently spurious extortion and fraud charges
and is still in pre-trial detention.
Case No. 29: Gulaliyev, Ogtay
68. Human Rights House (HRH) and several other NGOs also
asked me to urgently place this case on our “Watch list”.
Mr Gulaliyev is a well-known human rights defender co-ordinating
the “Kura” centre whose aim is to help victims of the April/May
2010 flood disaster to obtain promised State assistance. Having
exposed serious mismanagement and corruption, he was arrested on
8 April 2012. His treatment in detention and the manner in which
the investigation is conducted gives rise to serious worries.
On 13 June 2012, the Sabirabad
district court ordered his release, but the criminal case against
him continues, according to the information I received just before
the adoption of this report.
Case No. 84: Seyidov, Elnur
70. A group of eminent members of the Coordination Council
of the Public Chamber of Azerbaijan asked me to flag the following
case of the brother-in-law of a leading opposition politician, Mr
Ali Karimli, who has reportedly been the subject of pressure by
the authorities over several years.
71. Mr Seyidov, who is not involved in politics and suffers from
serious physical disabilities (multiple sclerosis), was arrested
on 27 March 2012 on allegedly fabricated fraud charges. The purpose
of the arrest, according to numerous observers, was to increase
the pressure on Mr Ali Karimli. The case is being investigated by
the Ministry of National Security, in breach of normal rules of
126.96.36.199. Cases of imprisoned
72. All but the first of the following cases were submitted
to me by Human Rights Watch in April 2012. I have also discussed
them in detail with the two lawyers from Baku who came to Berlin
on 10 and 11 May 2012. Contrary to the other cases raised in this
report, they were not included in the original lists of alleged
cases of political prisoners submitted by the Azerbaijani NGOs that
participated in the January 2012 hearing.
Case No. 21: Bayramov, Ramin
Mr Bayramov is the editor of the website “Islamazeri.az”.
He was arrested on 11 July 2011 and sentenced on 26 January 2012
to one year and six months in prison for possession of drugs and
firearms. According to observers,
there are doubts about the real
reasons for his arrest, which took place on the same day as those
of the leaders of the Azerbaijani Islamic Party (AIP).
It was initially reported that the National Security
Ministry suspected Mr Bayramov of having links with the Iranian
Cultural Centre in Baku and belonging to the radical Shi'ite group
“Jafari”, but then he was charged with drugs and firearms possession.
74. According to a human rights activist who cannot be suspected
of being particularly sympathetic to Islamic ideas, the accusations
against Mr Bayramov look unconvincing. The drugs were found in the
pocket of a traditionalist Muslim believer arrested in the street
purportedly at random and a forensic examination revealed that he
is not a drug addict.
The website edited by Mr Bayramov is strongly critical of
the government, from an Islamic viewpoint, and has opposed, for
example, the ban on wearing the Islamic headscarf (“hijab”) in schools.
Case No. 49: Janiyev, Aydin
76. Mr Janiyev, a journalist of the Khural newspaper from Lankaran,
was sentenced to three years in prison in November 2011 on “hooliganism”
charges, apparently in retaliation for articles he had published.
188.8.131.52. “Watch list”: persons
in pre-trial detention arrested in suspect circumstances but not
77. Human Rights Watch and other local human rights groups
have asked me to flag the following cases of journalists who are
still in pre-trial detention.
Case No. 20: Bayramli, Anar
78. Mr Baramli is a journalist for Iranian “Sahar” television.
He was arrested on 17 February 2012 on apparently suspect drug possession
charges. He voluntarily came to the local police station after officers
had come to his home to inform him that the police chief wanted
to speak with him. Upon arrival at the police station, he was asked
to leave his jacket in one room, and then escorted to another room.
The police chief never showed up and Mr Bayramli was not questioned,
but escorted back to the first room, where police officers searched
his clothes. According to Mr Bayramli's lawyer, police found 0.387
grams of heroin in a jacket pocket. Mr Bayramli's driver, Ramil
Dadashov, was arrested separately, on the same day, also facing
questionable drug possession charges.
79. Human Rights Watch pointed out to me that Azerbaijani law
enforcement bodies frequently use bogus drug possession charges
against government critics to silence them, citing the recent cases
of Eynulla Fatullayev, Jabbar Savanli and Mirza Zakit. Just before
this report was distributed, I was informed that Mr Bayramli had
indeed been convicted of drug possession and sentenced to two years
in prison by the Binaqadi district court.
Case No. 28: Gonagov, Vugar
Case No. 30: Guliyev, Zaur
80. Respectively executive director and editor-in-chief
of Xayal television in Guba, Mr Gonagov and Mr Guliyev were detained
on 13 March 2012 and are still in pre-trial detention. They face
criminal charges of “organising and participating in social unrest
and abuse of power”. The charges appear to be linked to their posting
on “YouTube” a speech by a high official in Guba, which many believe
was the catalyst for mass protests in Guba on 1 March 2012.
81. Their treatment in detention gives rise to concern: they were
unlawfully kept in a police cell until 6 April 2012, when they were
transferred to the Kurdakhani pre-trial detention facility. Mr Guliyev
was allowed no visits from his lawyer from 13 March until 6 April.
Mr Gonagov was allowed two such visits, only to be told on the second
visit that the lawyer refused to work for him, apparently under
pressure. Until their transfer to Kurdakhani, they were also not
allowed any visits from family members. Despite numerous requests,
the two journalists' lawyers have not been granted access to their
case files. Mr Guliyev also suffers from severe ulcers. Although
he was examined by a doctor in pre-trial detention, the facility
claims that they do not have medicines to treat him.
Case No. 89: Zeynalli, Avaz
82. Mr Zeynalli, editor of the Khural newspaper,
was arrested in October 2008 and is still in pre-trial detention on
questionable extortion charges, which according to HRW were apparently
brought in retaliation for critical reporting by Khural. The charges against Mr Zeynalli
were brought by a member of parliament belonging to the ruling party.
Additional tax evasion charges were brought against Mr Zeynalli
in March 2012. Furthermore, the newspaper's property was seized
by court bailiffs in October 2011 after it failed to pay fines in
defamation cases brought by the head of the presidential administration
and the director of the Mass Media State Support Fund.
184.108.40.206. Cases of Islamist
83. This group of cases is particularly delicate, and
the list is definitely incomplete. My interlocutors among the human
rights defenders in Azerbaijan distinguish between three sub-groups,
which number well over 200: firstly, members of illegal (underground)
political organisations and armed groups, secondly, members of the unregistered,
but openly active and non-violent “Islamic Party of Azerbaijan”,
and thirdly, individual believers and clerics linked to Said Dadashbeyli
persecuted because of their religious activities.
84. As background, it should be recalled that the Azerbaijani
Muslims are split into about 70% Shi'ites and 30% Sunnis. The Shi'ites
are traditionally looking towards Iran and live mostly in the Southern
provinces of Lankaran, Astara, Masally and Bilasuvar, but there
are also sizeable Shi'ite communities in the regions of Baku and
Sumqayit. The Sunnis live predominantly in the North, or in the
region of Baku or elsewhere as refugees from occupied areas in the
centre of the country. They have traditional ties with Daguestan
and Chechnya, and some have participated in “djihadist” activities
in the North Caucasus and Afghanistan following radical foreign influences
such as Wahhabism (from Saudi Arabia).
85. According to my interlocutors from civil society, there is
no evidence that the IPA and the group of Said Dadashbeyli have
engaged in actual violence, although they appear to have chosen
to work “underground” (the Dadashbeyli group never even attempted
to register, and the IPA did not attempt to fight the refusal of registration
by the Ministry of Justice in the courts). I was told that the objective
of these groups is the establishment, albeit by peaceful means,
of the Sha'aria, which would involve abolishing many of the rights protected
by the European Convention on Human Rights.
For obvious reasons, I have not had the opportunity to meet
with the imprisoned leaders of these groups in Azerbaijan. I have,
however, consulted the IPA leadership by correspondence, through
their lawyer, Mr Gasimli, with whom I also spoke about the following
cases at length during our working session in Berlin on 10 and 11
May 2012. I asked “impolite” questions about the leaders' political
objectives and the methods with which they intended to come to power.
They gave all the “right” answers, refuting archaic Sha'aria rules
and clearly condemning any violence. I must nevertheless admit that
I still have difficulties assessing this particularly diverse group
of cases. Remaining faithful to the agreed criteria for the definition
of political prisoners, I have concentrated on the presence of a
fair trial. It is perfectly legitimate, and expressly recognised in
Article 17 of the European Convention on Human Rights that a State
has the right to defend its constitutional order against groups
that want to overthrow it in order to establish a new regime disregarding
the rights and freedoms protected by the Convention. But a person,
even convicted of a violent crime but by an obviously biased court,
on the basis, for example, of a confession extracted by torture,
may well be innocent and, if persecuted for political reasons, should
be recognised as a political prisoner. I can only solemnly appeal
to the Azerbaijani authorities, and in particular the judicial authorities,
to refrain from using unfair and unlawful methods in their fight
against Islamic extremism. Methods such as torture, trumped-up charges,
manipulated witnesses, biased assessment of evidence, etc. only
end up delegitimising the fight against extremist groups and in
fact strengthening them by creating “martyrs”. This is the position
adopted by our Assembly in the light of recent reports such as those
by Dick Marty and by Lord Tomlinson covering different aspects of
the fight against terrorism whilst respecting human rights,
which I fully
In view of the above, I will concentrate on a small number
of emblematic cases for which I have received sufficiently detailed
220.127.116.11. Islamic Party of
The chairperson, his deputy and other members of
the IPA were arrested in 2011 for an attempted coup d'état
. According to observers,
the persecution of the members of this party started after a speech
by the chairperson, which was also posted online,
criticised the government and called on all Muslims to overthrow
it. Allegedly, weapons were found in the residences of several party
members or relatives, but major procedural violations occurred during
the searches and seizures and the trial. I will present in some
more detail the case of party chairperson Movsum Samedov, as I was
able to question his lawyer during our working session in Berlin
on 10 and 11 May 2012. Most of the following cases, presented in
alphabetic order, are linked to this case (with the exception of
those of four other IPA activists, Mr Ganiyev (case No. 25) and
Mr Ilyasov (case No. 40)).
Case No. 3: Abbasov, Faramiz
89. Mr Abbasov was arrested in 2011 and sentenced to
11 years in prison for an attempted coup
Case No. 5: Abdullayev, Vagif
90. Deputy Chairperson of the Islamic Party, he was arrested
in 2011 and sentenced to 11 years in prison for an attempted coup d'état.
Case No. 7: Ahundzade, Ruxulla
91. Chairperson of the Islamic Party's Astara regional
organisation, he was arrested in 2011 and sentenced to 11 years
and six months in prison for an attempted coup
Case No. 25: Ganiyev, Arif
A leading IPA activist, Mr Ganiyev was arrested on
11 July 2011 (at the same time as Islamic blogger Ramin Bayramov)
and convicted on spurious drug and
weapons possession charges on 26 January 2011.
Case No. 40: Ilyasov, Fahri
93. Sentenced to three years and six months for “hooliganism”.
Mr Ilyasov is an Islamic theologian and a leading member of the
IPA. He was arrested at a separate protest action against the “hijab”
ban in the city of Ganja and was convicted solely on the basis of
evidence provided by the police for breaking police equipment and
“destroying work harmony” in the police station.
Case No. 63: Mamedrzayev, Firdovsi
94. A member of the Islamic Party, Mr Mamedrzayev was
arrested in 2011, sentenced to 10 years for an attempted coup d'état and placed in “isolator”
Case No. 82: Samedov, Dayanat
95. A relative of the Chairperson of the Islamic Party,
he was arrested in 2011, accused of an attempted coup d'état and sentenced to 10
years in prison.
Case No. 83: Samedov, Movsum
96. Mr Samedov is Chairperson of the Islamic Party of
Azerbaijan and a medical doctor by training. He was placed in administrative
detention on 7 January 2011, in pre-trial detention on 20 January
2011, and sentenced on 7 October 2011 to 12 years in prison for
an attempted coup d'état (“capture
of power through violence”).
97. The main evidence for the conviction was a speech he had made.
Mr Samedov had, inter alia, accused the
current government of being corrupt and “friends with the Zionists”,
and announced that “the Azerbaijani people must finish with this
cruel regime”. The significance of this speech as an attempt to
“capture power through violence” under the criminal code was assessed
by a court-appointed expert, a physicist by training. A request
by the defence for a counter-expert analysis was rejected by the
98. Mr Samedov was also convicted of preparation of terrorist
acts against Jews living in the Guba region (so-called “mountain
Jews,” who are considered particularly well integrated into Azerbaijani
society). The prosecution did not provide any specifications with
regard to the alleged plot. A Jewish parliamentarian from the region,
Mr Jevda Abrahamov, publicly stated that his community has no quarrel
with the Muslims in the region.
99. The procedure followed in the pre-trial phase was dubious.
Whilst Mr Samedov was arrested on 7 January 2011, his relatives
were not informed of his whereabouts. They addressed themselves
to a lawyer on 12 January, asking for help in their search. The
lawyer wrote to all relevant authorities (Interior and Justice Ministries,
prison administration) but did not get an answer for another week.
In the following week, he had access to his client only once, at
the Ministry of Interior, under police surveillance. Mr Samedov
was only officially placed in pre-trial detention and accused of
a criminal offence (attempted capture of power through violence,
the corpus delicti being the
above-mentioned speech) on 20 January 2011.
100. Weapons were found with his relatives: a Kalashnikov, three
hand-grenades, and some ammunition in the “mini-market” belonging
to Mr Samedov's nephew, and one week later another Kalashikov and
more grenades were found in the home of a brother-in-law. In both
cases, the search protocols were signed by people brought along
by the police. They were described as “part-time policemen” by the
lawyer, who indicated to me that he has evidence that the police
use the same witnesses over and over again, some even at the same time
in different places.
101. Another pattern of procedural abuse was described by the lawyer
as follows: witnesses of the prosecution were “well prepared”, but
if they began to waver under the defence's questioning, the judge
cut off the interrogation. For example, when a witness describing
himself as a “religious man” was asked how often he prayed each
day, he answered “17 times”, following which the judge stopped the
102. The lawyers did not have any meaningful access to their clients
during the trial, which went on all day, day after day, with no
access being granted to the lawyers after the end of the hearings.
103. Given that Mr Samedov was accused (and convicted) of masterminding
an alleged terrorist conspiracy and an attempted coup d'état, it is surprising that,
despite the obvious possibilities of surveillance of people suspected
of such actions, the prosecution did not even attempt to put forward
any evidence, such as intercepted messages or conversations, in
order to substantiate the accusations, which have apparently remained
104. In view of the political character of the action for which
he was convicted (a public speech), the political role played by
Mr Samedov, the parallel arrest and conviction of the entire party
leadership, and the apparent procedural violations and inconsistencies
of the prosecution's case, I consider Mr Samedov a presumed political
prisoner under the agreed criteria.
18.104.22.168. “Said Dadashbeyli
105. The following cases are of members of a group of
mostly young people arrested on 13 January 2007 for an alleged attempted coup d'état. The group is said to
be pro-Islamic. Apparently, numerous violations of procedural rights
occurred during the trials. The accused have reported severe pressure
and torture, and some of them have lodged applications to the European
Court of Human Rights. Local NGO observers who do not generally
sympathise with the group's political objectives consider that there
is little to no evidence of actual or planned violence by the group
and that many of the charges (weapons or drugs “found”) may have
been trumped up.
106. The following cases belong to this group. I will provide more
details of Mr Dadashbeyli's own personal case.
Case No. 6: Agayev, Farig (Farid)
Mr Agayev was sentenced to 13 years in prison; his
case is pending before the European Court of Human Rights.
Case No. 9: Aliyev, Ceyhun (Djeyhun/Jeyhun)
108. Mr Aliyev was sentenced to 14 years in prison.
Case No. 13: Aliyev, Rashad
109. Mr Aliyev was sentenced to 14 years in prison.
Case No. 22: Dadashbeyli, Said
110. Mr Dadashbeyli was born in 1975. He was arrested
on 13 January 2007 and convicted on 10 December 2007 under eight
different articles of the Criminal Code, including for attempting
to seize power through violent means (Article 228.4), illegal detention
of weapons and ammunition (Article 228.1), establishment of a terrorist group
(Article 218.2), and use of counterfeit money (Article 204.3.1).
He was sentenced to 14 years in prison.
111. He was found to be the leader of an Islamic terrorist conspiracy.
Around 35 alleged conspirators were arrested at first and placed
in confinement cells at the Ministry of National Security, incommunicado
for two days. Eleven of them were indicted, of whom 10 were convicted
and one died in detention. According to my interlocutors, the families
of the nine convicted persons (with the exception of Mr Dadashbeyli's)
were asked to pay bribes, which they refused. The assumption is
that around 20 detainees' releases were “bought”. None of the convicted
people had ever even publicly criticised the government.
112. Some alleged members of this group are known to be secular
persons, others Shi'ites, and yet others Sunnis. The judgments refer
to relations with both Iran and Saudi Arabia, as well as with Free
Masons' lodges. My interlocutors found it unlikely that Shi'ites
(supported by Iran) and Sunnis (supported by Saudi Arabia) would enter
into a conspiracy together with Free Masons. Relations between the
two main currents of Islam in Azerbaijan are generally seen to be
as cold as those between the two countries allegedly supporting
them. Observers found it more likely that the authorities had conjured
up an imaginary “Islamist conspiracy” in order to shore up their
support among secular Azerbaijanis and Western countries.
113. Whilst some members of the group “confessed” to being part
of such a conspiracy, they allegedly did so under torture. One of
the accused, Mr Emin Mammadov, died in pre-trial detention. The
prosecution stated that he died of a disease. Relatives of alleged
members of the group were pressured to refrain from speaking with human
rights defenders. After the judgments were passed, the relatives
of the convicted persons nevertheless founded a support group, claiming
in particular that the confessions were made under torture. Mr Dadashbeyli, who
was described to me as an articulate, highly educated person, also
complained of having been tortured. He specified during the trial
that he was beaten and given psychotropic drugs.
According to the lawyers, the searches leading to the seizures
of weapons and ammunition were flawed in the same way as those in
the IPA cases.
The investigators reportedly
did not even have search warrants or take fingerprints off the items
In the judgment, Mr Dadashbeyli was identified as the “leader”
of this group, without any justification or evidence. According
to the lawyers, most people accused of being members of the group
said during the trial that they did not even know each other personally
before they were arrested, except for casual encounters in a café,
discussing political and religious topics; the prosecution did not
adduce any evidence to the contrary, except for silent
footage of a café scene in which many of the accused could be seen.
I was told that the trial judge in Mr Dadashbeyli's case,
Mr Anvar Seyidov, is frequently assigned “politically motivated”
cases, and that the European Court of Human Rights has already found
numerous violations of the Convention in cases tried by judge Seyidov.
In the present case, Judge Seyidov reportedly sent a letter dated
24 December 2007 to the Minister for National Security, Mr E. Mahmudov,
asking him to reward the MNS employees who had worked on this case.
This would appear
to be a violation of the constitutional (and conventional) requirements
of separation of powers, neutrality, and objectivity of judges.
117. In view of the disturbing lack of evidence other than some
confessions obtained in dubious circumstances, the death of a suspect
in pre-trial detention, and of pressure exercised against family
members of the accused, in conjunction with the unlikely scenario
of a joint Shi'ite/Iranian, Sunni/Saudi Arabian and Masonic conspiracy,
I consider Mr Dadashbeyli and the other members of his alleged group
as presumed political prisoners.
Case No. 27: Gocayev (Gojayev),
Mr Gocayev was sentenced to 13 years in prison; his
case is pending before the European Court of Human Rights.
Case No. 31: Guliyev (Quliyev),
Baybala (Beybala) Yahya
119. Mr Guliyev was sentenced to 13 years in prison. He
allegedly suffers from tuberculosis and was diagnosed as a “person
of schizoid type” in August 2004 by a mental hospital in Sumgayit.
Case No. 39: Idrisov, Mikayil
Mr Idrisov was sentenced to 12 years in prison; he
reportedly suffers from serious health problems. His case is pending
before the European Court of Human Rights.
Case No. 53: Karimov (Kerimov),
121. Mr Karimov was arrested upon his return from a “Hajj”
visit; he spent nine months in a MNS/Ministry of National Security
prison, and sentenced to 11 years.
Case No. 56: Kerimov (Karimov),
122. Mr Kerimov was sentenced to 14 years in prison, and
allegedly suffers from tuberculosis.
Case No. 69: Mehbaliyev, Emin
123. Mr Mehbaliyev was sentenced to 12 years in prison.
22.214.171.124. “Hijab case”
The following group of cases concerns a number of
mostly young persons arrested on 6 May 2011 when they protested
in front of the Ministry of Education against the ban on Islamic
headscarves (hijab) in schools. They were given prison sentences
of between one year and six months, and three years and six months. According
to NGO observers, their alleged violence was mainly in self-defence
against physical abuses by the police, which is why their cases
could be compared to those of the young activists arrested for IPA
actions (section 126.96.36.199 above).
The expert who examined the judgments (in Azeri language)
on my behalf
that “accusations against them were exaggerated and sometimes seem
non-serious”. For example, in the judgment against the first group
on 7 October 2011, five participants of the protest action were
accused of having injured 30 policemen when they resisted truncheons
using sticks and stones. Those who were not videotaped with sticks or
stones in their hands were the ones who received the harshest sentences.
In the second group, sentenced on 5 December 2011, nobody was taped
with stones and sticks, but they (again) received the most severe sentences.
In the third group, sentenced on 23 December 2011, nobody was seen
on tape in possession of any weapons. Altogether, no injury was
detected on any of the demonstrators, although they were accused
of actively resisting arrest, and the police video records did not
show any of them hitting a policeman or a car. According to the
expert, even the official version of the events confirms that the
protest action was peaceful, at least until the policemen started
to disperse it.
126. The cases of Hasan Mammadov (case No. 65) and Ilgar Musayev
(case No. 70) are not related to the protest action against the
Hijab ban on 6 May 2011, but to a separate one in Jalilabad on 2
Case No. 2: Abbasov, Elshan
127. Mr Abbasov was sentenced to one year in prison.
Case No. 8: Alekberov, Taleh
128. Mr Alekberov was sentenced to one year and six months
Case No. 16: Arbarov, Taleh
129. He was sentenced to one year and six months in prison.
Case No. 17: Asgarov, Mammad
130. Mr Asgarov was sentenced to three years in prison.
Case No. 19: Bagirov, Taleh
131. Mr Bagirov was sentenced to one year and six months
in prison, as an “organiser”.
Case No. 42: Iskandarov (Isgandarov),
132. Mr Iskandarov was sentenced to three years in prison
on 5 December 2011; the sentence was confirmed by the Baku court
of Appeal on 29 February 2012.
Case No. 45: Ismaylov, Araz Vasif
133. Mr Ismaylov was sentenced to two years and six months
Case No. 47: Ismaylov, Tarlan
Case No. 48: Jabiyev, Azer
Case No. 14: Mammadov, Nurani Ahmad
134. These three persons were sentenced to two years in
Case No. 65: Mammadov (Mammedov),
Case No. 70: Musayev, Ilgar
135. Mr Mammadov and Mr Musayev were sentenced to three
years and six months and three years respectively for “hooliganism”
after having given public speeches against the headscarf ban in
Jalilabad at the feast of “Ashura” on 2 June 2011. The verdict was
based only on the testimony of police officers on the detainees'
Case No. 75: Novruzov, Chingiz
136. Mr Novruzov received a prison sentence of one year
and six months.
Case No. 76: Nuriyev, Rufat
137. Mr Nuriyev was sentenced to two years in prison.
Case No. 88: Valiquliyev (Valiguliyev),
138. Mr Valiquliyev was sentenced to one year and six
months in prison.
188.8.131.52. Other emblematic
139. The following cases are perhaps the most emblematic
as regards the treatment of perceived political opponents by law
enforcement authorities, and concern former Economic Development
Minister Farhad Aliyev. The authorities targeted not only the former
minister, who was first arrested for participating in an alleged
coup d’état and, after 17
months spent in pre-trial detention, accused of totally different
crimes; they also persecuted his family members and former collaborators.
The single-minded determination of the authorities is further illustrated
by the fact that the authorities have not even reacted to numerous
appeals, including from the Assembly's Committee on Legal Affairs
and Human Rights, to release Mr Aliyev on humanitarian grounds,
in view of his serious health problems.
Case No. 10: Aliyev, Farhad
140. The former Minister for Economic Development was
arrested on the eve of the parliamentary elections of 2005 and accused
of participation in a coup d'etat.
However, during the trial he was only accused of economic crimes
(abuse of power, stealing government property) and sentenced to
10 years in prison.
As Minister for Economic Development, Farhad Aliyev had strongly
criticised large-scale corruption and the non-transparent use of
oil revenues, and had begun implementing serious reform measures
to prevent abuses of power by government officials (namely the reduction
of the number of business activities requiring a license from 270
to 30, creation of the Oil Fund).
subsequent campaign against him targeted all his family members
and many of his close collaborators, including one (Alihuseyn Shaliyev)
who died in detention allegedly after he refused to testify against
Farhad Aliyev. Immediately after Mr Aliyev's arrest, on 3 November 2005,
the President of Azerbaijan reportedly made threatening and prejudicial
statements against him.
against Mr Aliyev was apparently marred by particularly serious
procedural violations. After the original accusation of an attempted coup d'état
could not be corroborated
in any way, new charges of “economic crimes” were brought against
him after 17 months, during which Mr Aliyev was kept in pre-trial
detention. He was allegedly put under severe pressure (inter alia
by threats to pin the
murder of the well-known journalist Elmar Huseynov on him), in order
to force him to admit to planning an “orange revolution” in collusion
with the secret services of several western countries. The trial
took place in a small courtroom filled in advance with purported
“victims” of Mr Aliyev so that human rights defenders, journalists,
and foreign representations had practically no access. His lawyers
and witnesses were also allegedly put under pressure, and his lawyers
were not allowed to contest evidence brought forward by the prosecution
or to introduce evidence of their own. Finally, people arrested
and indicted alongside Mr Aliyev were released after they gave incriminatory
testimony against him. A close collaborator of Farhad Aliyev in
the Ministry of Economic Development, Mr Alihuseyn Shaliyev, was
also arrested and reportedly subjected to torture in order to make
him testify against Farhad Aliyev. He died in the hospital of the
penitentiary service and the causes of his death were reportedly
never properly investigated.
Farhad Aliyev also has serious health problems. The Committee
on Legal Affairs and Human Rights asked the authorities for his
release on humanitarian grounds in September 2011. The European
Court of Human Rights found several violations of Articles 5 and
6 of the Convention
brother Rafiq won a judgment in his favour on 6 December 2011).
In view of the political overtones of the trial against a
former minister, whose economic reform initiatives posed a threat
to established “monopolists” linked to the authorities in place,
the numerous procedural violations committed before and during the
trial, the additional persecution of Mr Aliyev's relatives and close collaborators,
along with the excessively harsh sentencing and treatment in prison
of an elderly, seriously ill man, I consider Farhad Aliyev as a
presumed political prisoner in accordance with our criteria.
Case No. 12: Aliyev, Rafiq
144. Rafiq Aliyev is the brother of Farhad Aliyev (case
No. 10) and former president of “Azpetrol”. Like his brother, he
was arrested on the eve of the parliamentary elections of 2005 and
accused of economic crimes (abuse of power, stealing government
property). Many observers considered at the time that the purpose
of the arrest was to increase the pressure on his brother Farhaq
to “confess” to a political plot. When the maximum pre-trial detention
period for economic crimes expired, he was accused of participation
in a planned coup d'état. When
this accusation could not be corroborated at all, he was sentenced
to nine years in prison for various economic crimes.
Like his brother, Rafiq Aliyev successfully applied to the
European Court of Human Rights,
which found violations
of the Convention concerning the excessive length of his pre-trial
detention, lack of judicial review and breach of his right to private
property (Article 1 of Protocol No. 1). In my view, Rafiq Aliyev
is a presumed political prisoner for the same reasons as his brother.
Case No. 11: Aliyev, Mamedali
Whilst this is a “new” case, in that Mamedali Aliyev
was only arrested in 2008, it is closely related to the so-called
“Case of the Generals” (alleged attempted coup
). The people convicted in that case had been included
on the “List of 716” examined by the Secretary General's independent
experts (Rahim Gaziyev, Alikram Gumbatov, Elkhan Abbasov, Huseynbala
Huseynov, Rafik Agayev). In 2002, the experts recognised all of
them as political prisoners and they were all subsequently released.
Mamedali Dilavar Aliyev, who is a supporter of former president
Ayaz Mutalibov and Vice-Chair of the pro-Mutalibov “Labour Party”,
had the bad luck of being arrested only in 2008. His case, therefore,
was not examined by the independent experts. But I am convinced
that he would be recognised as a political prisoner using the same criteria
and should therefore be released without further delay.
147. Mr Aliyev is 70 years old and he is in very bad health. He
should therefore also be released on humanitarian grounds.
Case No. 24: Farzullayev Jeyhun
148. Mr Farzullayev was arrested on 8 January 2011 by
Nasimi district police, alongside Nemat Panahov (case No. 81 below),
a well-known political opposition activist. Mr Farzullayev was allegedly
ordered by the deputy head of the police department to commit perjury
against Mr Panahov. When he refused to do so, he was arrested and
charged alongside Mr Panahov and finally sentenced to four years
in prison for “hooliganism”.
Case No. 77: Panahov, Neymat
149. Mr Panahov is one of the historic leaders of the
national liberation movement of Azerbaijan. Some time ago he returned
to active political life in opposition to the present government,
which he sharply criticised in public. He was arrested on 8 January
2011 for “hooliganism” (Article 221 of the Criminal Code) and deliberately causing
bodily harm (Articles 126 and 127), and sentenced to six years in
prison. There are serious allegations of procedural violations,
including that the police tried to pressure another person, Farzullayev
Jeyhun Hidayet (case No. 24 above) into giving false testimony against
Mr Panahov. In court, the purported victim (of insults and beatings)
and other witnesses presented by the prosecution actually denied
the accusations. The court apparently simply ignored these testimonies
as well as those of eyewitnesses of the defence saying that no crime
had taken place. The lawyers who came to work with me in Berlin
in May 2012 confirmed these allegations, which I had a hard time
believing. They cast a shadow on the objectivity and even professionalism of
Azerbaijani courts in politically charged cases.
Other human rights defenders
out that the main reason for Mr Panahov's arrest was his sharp criticism
of the government published in the “Nota
” newspaper, complaining, inter
of election manipulations he faced in his district.
These activists also note that items seized at Mr Panahov's house
such as video-cassettes related to the National Liberty Movement,
are not linked to the “hooliganism” charge. In addition, they remark
that pressure was also put on Mr Panahov's family (he is responsible
for six children and two elderly parents), including by cutting
off the electricity and heating of Mr Panahov's residence at the
end of December 2011. Mr Panahov's 83-year-old father, who was living
at his house, died of cardiac problems. Contrary to Azerbaijani
Mr Panahov was
not even allowed to attend his father's funeral.
151. An application to the European Court of Human Rights lodged
by Mr Panahov is reportedly pending.
152. In view of his harsh and discriminatory treatment both by
the court and the prison authorities, which can only be explained
by motives related to his political activities, I consider Mr Panahov
as a presumed political prisoner.
Case No. 32: Gurbanov, Maarif
153. Mr Gurbanov was Head of Department in the Ministry
of Economic Development when he was arrested in 2005 and sentenced
to seven years and six months in prison for embezzlement and corruption.
The case is directly linked to those of the Aliyev brothers (cases
Nos. 10 and 12 above), who are presumed political prisoners. Mr
Gurbanov allegedly refused to give false testimony against Farhad
Aliyev and was given his particularly harsh prison term in retribution.
154. He has reportedly lodged an application to the European Court
of Human Rights.
Case No. 41: Insanov, Ali
155. This is another emblematic case which has already
been raised in several resolutions of the Parliamentary Assembly.
Mr Insanov is a former Minister of Health, internationally renowned
medical scientist, and former member of the Executive Committee
of the World Health Organisation (WHO). He was arrested on 20 October
2005 on the eve of the parliamentary elections, accused of participating
in an attempted coup d'état. But
during the trial he was only accused and convicted of economic crimes
(abuse of power, stealing government property). He was sentenced
to 11 years in prison, where he is reportedly kept under especially harsh
conditions, despite his age (Mr Insanov was born in 1946) and the
serious health problems that he has been suffering from.
156. Reportedly, family members and former collaborators were also
persecuted intensely. Many lost their jobs, had their assets confiscated,
or were prosecuted on the basis of allegedly trumped-up charges.
Even Mr Insanov's internationally acclaimed medical textbook on
the treatment of tuberculosis was prohibited from sale in Azerbaijan.
Mr Insanov's case was raised in two previous Assembly texts
adopted on 16 April 2007
and 6 June 2008.
application he lodged on 31 March 2008 before the European Court
of Human Rights is still pending.
158. Given the political backdrop of this case, the change of the
charges during pre-trial detention, the intense pressure on family
members and former collaborators, and the discriminatory treatment
of Mr Insanov, illustrated by the unusual length of his prison sentence,
the confiscation of all his assets, the banning of his medical textbook
and his harsh treatment in prison despite his age and health issues,
I cannot but consider Mr Insanov a presumed political prisoner.
3.2.2. “Old cases” of
presumed political prisoners
159. The following are either still unresolved cases of
the list of 716 alleged political prisoners arrested up to 2000
and examined by the independent experts, or persons who were arrested
at a later date for having participated in the same events, or who
were mistakenly omitted from the list of 716 but included in the
second list of 107 cases examined by the Assembly's first follow-up
report in 2004.
184.108.40.206. OPON (March 1995
160. The first three cases are the most emblematic – they
were recognised as “political prisoners” by the independent experts
in 2002 and have still not been released. The detainees concerned
were participants in the 1995 rebellion of the “OPON” special police
unit (“March events” of 1995).
Case No. 15: Amiraslanov, Elchin
Case No. 55: Kazymov, Arif Nazir
Case No. 78: Poladov, Safa Alim
The cases of these three men were studied in great
detail by the independent experts, as pilot cases, and recognised
by them as political prisoners.
are still serving life sentences in Qobustan prison.
162. The rationale for their recognition as “political prisoners”
included serious procedural violations, such as serious accusations
of torture in the cases of Mr Amiraslanov and Mr Kazymov; denial
of access to a lawyer before and during the trial in the case of
Mr Amiraslanov; the harassment of other family members, including the
police seriously beating Mr Amiraslanov's younger sister; reliance
on confessions made during the investigation and later retracted
in the case of Mr Kazymov; and the trial court lacking independence
and impartiality, with retired military officers serving as “people's
163. In September 2007, the remaining members of the “Working Group
on political prisoners” (from which several leading NGO representatives
were however excluded by then) reportedly agreed with the authorities that
Elchin Samed Amiraslanov, Arif Kazymov and Safa Alim Poladov were
in fact “criminals”. Mr Poladov was retried and found guilty again.
164. The following five cases also concern alleged participants
in the “OPON” mutiny, but they were not recognised as “political
prisoners” by the independent experts.
Case No. 4: Abdullayev, Shamsi
165. Mr Abdullayev was not recognised as a political prisoner
by the independent experts. In his case, no allegations of torture
were made. There is also no reference by the independent experts
to the court lacking independence and impartiality, although Mr
Abdullayev was tried together with Mr Amiraslanov (case No. 15 above).
Most importantly, Mr Abdullayev confessed to the (common law) killing
of a businessman.
Case No. 50: Karimov (Kerimov)
166. Mr Karimov was also not recognised as a political
prisoner by the independent experts. Again, there were no allegations
of torture. Mr Karimov was convicted in five separate public trials
of serious common-law crimes, including murder. None of the judgments
makes reference to Mr Karimov's participation in the events of March
1995 (OPON mutiny).
Case No. 72: Mustafayev, Hasan
167. Mr Mustafayev was also not recognised as a political
prisoner by the independent experts; without there being any allegations
of torture, he was convicted of serious common-law crimes, including
murder, and hostage-taking.
Case No. 87: Tahirov, Aliyusif
168. Mr Tahirov was not considered a political prisoner
despite the fact that he was also convicted for participation in
the OPON/March 1995 events, because he was also convicted for a
number of unrelated serious crimes (including murder, kidnappings);
the case was mentioned in the judgment of the European Court of
Human Rights of 19 January 2006 (Application No. 35608/02).
169. I share the independent experts' view regarding the above
cases (Nos. 4, 50, 72 and 87). The detainees should not be recognised
as presumed political prisoners because they were convicted of serious
common-law crimes independently of their participation in the events
of March 1995 (OPON mutiny).
170. According to information received from NGOs, a number of persons
who were tried and convicted alongside the three cases recognised
as political prisoners (cases Nos. 15, 55 and 78), and who never appeared
on any list of alleged political prisoners or were taken off such
lists for reasons not related to their alleged criminal activities
are still in prison today. To the extent that these were very young,
low-ranking OPON soldiers who were only following orders, and did
not commit any violent crimes besides their participation in the March
1995 events, they ought to be released in view of the length of
time in prison already served and the serious procedural violations
surrounding this mass trial.
171. This argument is particularly strong following the amnesty,
at the end of 2011, of Mr Nizami Orudj Shamuradov, who was the senior
commander of all those OPON soldiers who are still in prison. He
spent only four years in prison after living in hiding for many
years and turning himself in voluntarily in 2007. In order to avoid
such an “irony of fate”, in the words of an Azerbaijani human rights
lawyer, the authorities should now turn the page and also free the
other, lower-ranking persons belonging to this group of cases.
220.127.116.11. Supporters of former
Prime Minister Suret Huseynov/Guseynov (“SH case”)
Another “historic” group of cases is that of the
supporters of former Prime Minister Suret Huseynov. Suret Huseynov,
who was initially convicted of attempting a coup
in 1994, was recognised as a political prisoner
by the independent experts
and subsequently released. But
a number of his supporters are still in prison. They were not recognised
as political prisoners by the independent experts because they were convicted
of serious, violent, common-law crimes, such as murder, robbery
and abduction, without there being allegations of torture or other
particularly serious procedural violations.
173. The following cases fall into this category.
Case No. 37: Huseynov, Magsud
Vagif (Maqsud Vaqif)
174. Mr Huseynov is the son of Vagif Huseynov (case No.
Case No. 38: Huseynov, Vagif
175. Mr Huseynov was a close ally of former Prime Minister
Suret Huseynov and a member of parliament for the opposition Popular
Front of Azerbaijan. But he was convicted in a trial, in which he
had the benefit of basic defence rights, of serious violent common-law
crimes (murder, robbery, abduction), as well as “usurping power” in
an administrative district in conjunction with the attempted coup d’état by Suret Huseynov.
Case No. 46: Ismaylov, Rashid
176. Mr Ismaylov joined the military unit commanded by
Suret Huseynov after escaping from custody, in which he was held
for participating in a killing spree as part of an armed gang. The
experts found that “[a]lthough the events for which Mr Ismaylov
was convicted were related to political events, their legal qualifications
are of a common law nature”.
Case No. 52: Karimov (Kerimov),
177. Mr Karimov, a cousin of Suret Huseynov, was one of
the main “executors” of the attempted coup
d’état allegedly instigated by Suret Huseynov in 1994.
But according to the court's judgment, he was involved in violent
acts (including “non-political” crimes such as attempted murder,
robbery, abduction and torture) and incited others to commit such
acts, so that the life sentence he received cannot be regarded as
disproportionate for political reasons. Allegations by relatives
of torture in pre-trial detention were not repeated by Mr Karimov during
Case No. 71: Mustafayev, Elshad
Case No. 73: Mustafayev, Maqsad
178. Both were members of the armed group of Vaqif Huseynov
involved in the coupd’état attempt allegedly instigated
by Suret Huseynov (see case No. 38 above). Both were convicted of
violent, “non-political” crimes, including the premeditated murder
of a prosecutor. Some contradictions in the judgments remain, including
the fact that both should have normally still been in prison on
the basis of previous convictions at the time when they allegedly
committed some of the crimes mentioned in the indictment.
179. Regarding the refusal of the independent experts to recognise
any of the above cases (Nos. 37, 38, 46, 52, 71 and 73) as “political”,
several Azerbaijani human rights defenders noted that the one or
the other of these persons may simply have been unaware of the ongoing
review procedure, or not have had competent legal representatives
and failed only for this reason to make a prima facie case of the
existence of serious violations, as the experts' criteria require.
180. I feel uncomfortable dismissing these considerations, but
I am unable to second-guess the findings of the independent experts
who had greater resources at their disposal in order to examine
these cases in depth. That said, given the length of time that they
have already spent in prison, they should be eligible for release
on parole under the normal rules. If the authorities persist in
refusing to apply the normal rules to these persons, this could
in itself constitute discrimination and raise suspicions as to political
18.104.22.168. Members of the
paramilitary group “Quaranqush” (Swallow), 1993
The “Quaranqush” detachment, comprising eight volunteers,
was created for the defence of the Gubadli border district against
the threatened Armenian military invasion. One member of this group
was killed in action and posthumously celebrated as a hero; another
left the detachment because he was wounded in action. After the
creation of the Azerbaijani national army in October 1991, the remaining
six members of the “Quaranqush” detachment were transferred to regular
police and army units. According to the authorities, they remained together
for purposes of gangster-style criminal activity in this district;
they were also accused of an armed attack on a police department
and the killing of five purported “traitors” on the day of the Armenian
invasion. According to human rights NGOs, the group's links to the
Popular Front movement
the newly established authorities, who persecuted the members of
this group in a particularly harsh way. One member of the group,
F. Shahmuradov, was killed during the arrest. Another, M. Maharramov,
committed suicide. A third one, Mr Qayibov, attempted suicide twice
(during the arrest and whilst in detention). Two others, the Novruzov
brothers, died during pre-trial investigation.
Case No. 58: Maherramov, (Maharramov)
As an alleged member of “Quaranqush”, Mr Maherramov
was sentenced in 2002 to life in prison. He was included in the
“List of 107” discussed in the Assembly's earlier reports on political
prisoners in Azerbaijan. My predecessor as rapporteur on this issue,
Mr Malcolm Bruce, who was still able to carry out a fact-finding
visit to Azerbaijan, commented on this case in his 2005 report as
“I confess that I have
been particularly struck by the case of Nadir Maharramov, who was
arrested in 2003 and sentenced to life imprisonment for supposedly
being part of the Garangush reconnaissance group. This group was
‘dissolved’ in 1993 (a mild euphemism meaning that its members,
who were initially heroes of Azerbaijan, were hunted down, arrested,
tortured and well and truly liquidated!). Nadir was 18 years old
at the time of the events and all the testimonies agree that he
was never part of this group.”
183. Noting that the group, after the two casualties, had six members
left, three of whom died during their arrest or in detention, and
three (cases Nos. 66, 79 and 85 below) still in detention, I can
only join my colleague and invite the authorities to redress this
apparent injustice done to this man who has by now spent a third
of his life in prison.
Case No. 66: Mammedaliyev (Mammadaliyev),
Case No. 79: Qayibov, Intiqam
Case No. 85: Shahmuradov, Yashar
184. These three men were sentenced to death in 1993 (later
commuted to life in prison). They were members of the paramilitary
group “Qaranqush” (Swallow) and supporters of the Popular Front
movement. They were not recognised as political prisoners by the
independent experts. Their rationale was that whilst the court did
not specify each gang member's personal contribution to the crimes
committed by members of the group, they were all convicted for participation
in a particularly violent crime (premeditated murder).
185. Whilst I feel somewhat uncomfortable not recognising these
three detainees as presumed political prisoners, given the obvious
political background of the harsh treatment these former “heroes”
received, I do not wish to second-guess the conclusions of the independent
experts, who based their decisions on the violent nature of the
crimes for which the prisoners were convicted, in line with the
criteria to which I have also subscribed in the first part of this
22.214.171.124. Other “old cases”
Case No. 14: Aliyev, Sadykh
Case No. 67: Mammedveliyev,
186. Both were arrested in 2000 and sentenced to life
in prison as leading members of a group called “Bohran” (Crisis).
The Azerbaijani State Security Committee (KGB) created this group
in 1989 in order to counteract security threats allegedly posed, inter alia, by the Popular Front
of Azerbaijan movement. The group allegedly committed several politically
motivated murders against supporters of President Heydar Aliyev,
along with other privately-motivated crimes. Mr Sadykh Aliyev was
not recognised by the independent experts as a political prisoner
because of the violent nature of the actions for which he was convicted,
and his application to the European Court of Human Rights was held
inadmissible. Mr Mammedveliyev appears on the “List of 107” attached
to the Assembly's previous report on this issue prepared by Malcolm
Bruce. I do not wish to deviate from the assessment by the independent
experts and therefore do not consider the two men as presumed political
Case No. 51: Karimov, Kamran
Case No. 59: Mahsimov (Maksimov),
Case No. 81: Safaraliyev, Alfat
187. Mr Karimov was sentenced in 1999 to 14 years in prison
as a member of the Lezgi National Movement “Sadval” (Unity). Reportedly,
the group is officially registered in the Russian Federation, but
is considered an illegal terrorist group in Azerbaijan. It had campaigned
in the 1990s for the unification of all Lezgins in one State (“Lezgistan”)
covering areas belonging to Russia (the south of Dagestan) and northern
Azerbaijan. Mr Karimov was convicted of having participated in an
armed attack on border guards.
188. Mr Mahsimov, the leader of the Azerbaijani branch of “Sadval,”
was sentenced in 1994 to life imprisonment for his alleged participation
in the terrorist attack on the Baku subway in 1994 killing 14 persons.
Both were included on the “List of 107” new political prisoners
by Malcolm Bruce.
Mahsimov's application to the European Court of Human Rights was
successful in that the Court found a violation of Article 6, paragraph
1 (fair trial), based on the fact that the cassation proceedings
before the Supreme Court of Azerbaijan took place in Mr Mahsimov's
190. Mr Safaraliyev was sentenced in 2000 to 15 years in prison
for his participation as an accessory in the bombing of the subway
of Baku in 1994. He had allegedly also participated in a riot in
Qobustan prison in January 1999. The independent experts did not
recognise him as a political prisoner in view of the violent nature
of the acts for which he was convicted. I share this view.
Case No. 18: Badalov, Rovshan
Case No. 68: Mammedov (Mammadov),
191. Both detainees were allegedly fighters in the Chechnya
and Karabakh conflicts.
192. Mr Badalov was arrested in 2004 and sentenced to nine years
in prison for murder, burglary, and the creation of illegal armed
Mr Mammedov was sentenced in 2001/2003 to life imprisonment
for killing a border guard whilst smuggling weapons into Georgia.
His lawyer denies that Mr Mammedov was the killer, saying that he
only shot in the air, and that the court one-sidedly interpreted
the evidence to Mr Mammedov's disadvantage in order to avoid implicating
members of the Azerbaijani Interior Ministry forces in the incident.
Mr Mammedov lodged a successful application to the European Court
of Human Rights,
found violations of Article 6 (fair trial), but not of Article 3
(prohibition of torture and inhuman and degrading treatment), due
to a failure to exhaust internal remedies. Other complaints based
on Articles 5, 6 13 and 14 of the Convention were rejected as manifestly
ill-founded. Mr Mammedov was included on the “List of 107”. I nevertheless
hesitate recognising either of them as a presumed political prisoner
due to the lack of information on specific procedural violations committed
against them and of any “political” background of the deeds for
which they were convicted and which constitute violent crimes by
194. In the light of the different groups of cases that
I have examined and which I briefly presented in this report, my
political conclusions are the following:
In Azerbaijan, the judicial process can be and still appears
to be abused for political ends, in order to intimidate, silence,
or otherwise neutralise opponents seen as threats by the ruling
elite, both activists of secular or religious opposition parties
and independent civil society activists, lawyers, human rights defenders, and
journalists. One worrying symptom that was recently brought to my
attention by the Norwegian-based NGO “Human Rights House” is the
increasing pressure brought to bear on lawyers who still dare to
defend “political” cases.
196. This strategy of intimidation does not require locking up
all opponents all the time. The apparent “game”, consisting in sentencing
some opponents more harshly, others less so, in making some serve
out their entire sentence and releasing others early – preferably
after a public show of submission and repentance – is unworthy of
a member State of the Council of Europe. Professional judges owe
it to their own self-respect not to play along with such “games”
and to convict only on the basis of credible evidence of an actual
When an elderly politician can be convicted of hooliganism
and sentenced to six years in prison after the witnesses of the
prosecution, including the alleged victim himself, testified in
court that there was no crime,
are we still
dealing with courts within the meaning of the European Convention
on Human Rights? Is the Convention system, is the European Court
of Human Rights, equipped to deal with trumped-up cases built on fabricated
evidence, such as the drugs “found” on Mr Fatullayev shortly after
the Court had held, exceptionally, that the only way to execute
the judgment finding numerous violations of the Convention in his
earlier conviction for a “crime” of opinion was to release him at
once? Cases such as those in which weapons, ammunition (even just
one cartridge), or drugs are “found” after searches targeting opponents,
“witnessed” always by the people who are sometimes miraculously
present in several places at the same time? In the most extreme
(and clumsy) cases of manipulation, the European Court of Human
Rights will have ways and means to find procedural or other violations
of the Convention. But what then? Even findings of serious procedural
violations, usually several years after the final instance of the
national courts, does not automatically lead to a retrial, let alone
the acquittal and release of the prisoner. The Convention system
is based on the political will of all States to uphold human rights
and to allow their partners in the peer review procedure laid down
in the Convention to help them correct any mistakes made. Frankly,
I am not convinced that the current authorities in Azerbaijan have
this political will, after they failed to co-operate with me when
I tried for several years to enter into a constructive dialogue
with them to discuss the problems of political prisoners and find
198. But the Azerbaijani delegation can still prove me wrong by
accepting and supporting the pragmatic and constructive proposals
that I am submitting for the Assembly's approval in the draft resolution
based on this report.